Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

History

The court responded to a request from the United Nations General Assembly of 10 December 2003 on the legal question under international law of the Israeli West Bank barrier built by Israel that partially follows the Green Line boundary between Israel and the West Bank and partially enters into the Israeli-occupied West Bank. The barrier has been a controversial subject and a cause of heightened tensions in the Israeli–Palestinian conflict. Israel argued that the barrier was necessary to keep out West Bank militants and avert more suicide attacks against its citizens.

Israel began construction of the barrier during the Second Intifada in September 2000, along and exceeding beyond the 1949 Green Line.

Statement

In its non-binding opinion, the Court found that the barrier violates international law and should be torn down. The vote of the justices was 14 to 1, with Judge Thomas Buergenthal dissenting.

Judge Rosalyn Higgins gave a separate opinion, where about humanitarian law it is stated, "obligations thereby imposed are (save for their own qualifying provisions) absolute. That is the bedrock of humanitarian law, and those engaged in conflict have always known that it is the price of our hopes for the future that they must, whatever the provocation, fight "with one hand behind their back" and act in accordance with international law".

The opinion was invoked in November 2006 by Al-Haq, a Palestinian human rights group, which brought a case in the UK Court of Appeal against the British government to end export licences to Israel to "secure the implementation of the July 2004 [ICJ] Advisory Opinion on Israel's Wall". The case was dismissed in November 2008.

The opinion was also referred to in United Nations General Assembly Resolution 66/225 of 22 December 2011.

The opinion held that Israel does not have an Article 51 right to self-defense in international law for two reasons: first that the threat emanates from a territory where it is an occupying power, and second because Article 51 applies against state actors and Palestinian militants are typically categorized as non-state actors.

References

References

1. (2012). "Brownlie's Principles of Public International Law". Oxford Univ. Press.
2. (9 July 2004). "World court rules against Israeli barrier".
3. "Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory". ICJ.
4. "Summary of the Advisory Opinion of 9 July 2004 {{!}} INTERNATIONAL COURT OF JUSTICE".
5. (9 July 2004). "Press release 2004/28: Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory – Advisory Opinion – The Court finds that the construction by Israel of a wall in the Occupied Palestinian Territory and its associated régime are contrary to international law; it states the legal consequences arising from that illegality".
6. (9 July 2004). "Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory: Declaration of Judge Buergenthal".
7. (9 July 2004). "Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory: Separate opinion of Judge Higgins".
8. ''R (Saleh Hasan) v Secretary of State and Industry'' [2008] EWCA Civ 1311.
9. "Al-Haq – Defending Human rights in Palestine since 1979".
10. (6 May 2024). "Genocide and Resistance in Palestine under Law's Shadow". Journal of Genocide Research.